RAMA NAND AND ORS. versus STATE OF HIMACHAL PRADESH

RAMA NAND AND ORS.

STATE OF HIMACHAL PRADESH

January 6, 1981

[R. S. SARKARIA AND R. S. PATHAK. JJ.]

Clrcumstantial evidence, "·alue of-Corpus delicti not found in tlu· case-Wllether inference of guilt of murder could be drawn l1·/ie11 rhe oth~r cil'cum.f'-tances established 011 record were sufficient to !Cad to the coriclusion lfiot ltn"lhin all liun1a11 p1obability the rictini was murdered by the accust'd.

Dismissing the appeal and maintaining the conviction and sentences of the appellants, the Court

HELD : (I) It is well settled that where the inference of guilt of an accused PeriiOn .is to be drawn ftoin circumstantinP evidence only, thoSe circutrt-stances must, in the first place, be cogently established. Further, those cin:um-stances should be of definite rendency pointin,g towards the guilt of the accused, and in their totality, must unerringly lead to the conclusion that within an huma11 probability, the offence was committed by the accused and none else. In the instant case-, the following circumstances had been correctly found to have been established by the prosecution: (i) Rama Naud accused bad stroiit motive to murder bis wife, Sumitra. (ii) Sumitra \Vas last seen alive "ith Rama: Nand, appellant in- the family house at Jherwin on the night between 13th and 14th May, 1972. (iii) (a) Rama Nand and the other co-accused falsely gave out that she had committed suicide by jumping into the river. They 'planred' o Sa/war and pair of shoes on the bank of the Sutlaj and gave out that they belcnged to the deceased, and Shish Ram lodged folsc report with the police to the effect that she had committed suicide by jumping into the river. The Salwar and the shoes, which had been 'planted' there to manufacture false clues by the accused, did not beiong to Sumitra, and the accused falsely ;:tiserte.d that these articles belong to the deceased. (b) The story given out by the accused persons that upto 11 a.n1. on May 14, 1972, Sumitra was planting chillies along with Sheela and other members of the family of the accused, was false. (iv) Tue. gold chain (Ex. P-1) and the watch (Ex. P-2) \Vhich Sumitra u~ed to \Vear on her person all the 24 hours, and the clothes (Ex, P-5 to P-10) which she had on her person and lhc basket (fu. P-11) and umbrella (Ex. P-12) which sho was carrying \Vhcn on the evening of May 13, 1972 she came to the house of the accused at Jhen.vin, \Vere recovered: from the house: of tho- accu~ed. (v) Somo days after the occurrence, one Paranda was found from the jungle near this village. There was bunch of hair in the plated tail of this Paranda. The tail :ippeared to have been cut. These hair sticking in the paranda and those found: entangled in the Dupatta of the deceased were according to the Forensic Expert of one and the sa·n1c person. (vi} legless decomposed corpse \\'as. recovered from the Sutlej near village Randol in mutilated condition. But its identity [4510-H, 452A-E, 453A-BJ

(2) Even o nthe assumption that the dead body of the victim was not found, circumstances (i) to (v) mentioned above in their cumulative effect includably and ra.tionally compeJ the conclusion that Sumitra had died and it 'n'as, Rama

Nand accused who had intentionally caused her death. Ordinarily, the recovery of· the dead-body of the victim or vital part of it, bearing marks of violence is sufficient proof of homicidal death of the victim. Even so, discovery of the dead-body of the victim bearing physical CiVidence of vio1encci, has never been considered as the only mode of proving the corpus delicti in murder. Indeed ve.ry many cases arc of such nature where the discovery of the dead-body is in1possible. blind adherence to this old doctrine of Sir Mathew Hale that "for conviction of murder atlcast the bcxly was found dead" would open the doer \\'idc open for many henious. murderer to escape \Vith impunity simply because they were: cunning and cleYer enough to destroy the body of their victim. Jn the context of our law, Haolc's enunciation has to be interpreted no more than emphasising that where the dead-body of the victim in a: murder case is not found, other cogent and satisfactory prOOf of hon1icidal dl~ath of the victim must be adduced by the prosecuti.on. Such proof may be the dir("Ct ocular account of an eye-witness, or by circurnstantial evidence, or by both: But \vhere the fact of corpus delicti, i.e. 'homicidal death' is sought to be established by circumstantial evidence alone. the circumstances must be of clinching and definitive character unerringly leading to the inference that the· victim concerried has met a- homicidal death. f,ven so, this principle of caution cannot be pushe'cl too far as requiring absolute proof. Perfect proof is se;ldom to be .had in this imperfect \VOrld, and absolute certainty is myth. That is \vhy under Section 3, Evidence Act, fact is said to be "proved'', ir tlie Court coru;idering the matters before- it, considers its existence so probable that prudent man ought. under the circumstanCts of the paorticular case, to act up-On the sllpposition that it exists. The corpl1s delicti' or the fact of homicidal death, therefore, can be proved by telling and inculpating circums-tances \vhich definitely lead to the conclusion that within alt human probability, the victim has been murdered by the accused concerned. [457 D-H, 458A·D1

CRIMINAi. APPllLLATE JuR1smcnoN: Criminal Appeal No. 11 of 1975.

Appeal by Special Leave from the Judgment and Order dated 7-6-1974 of the Himachal Pradesh High Court in Criminal Appeal r~ No. 40/73.

Order dated

flardya/ Hardy and P. P. Juneja for the Appellants .

Badri Das Sharma and Miss A. Subhashini for the Respondent.

The Judgment of the Court was delivered by

SARKARIA, J. This appeal by special leave is directed against judgment, dated June, 7, 1974, of the High Cour~ of Himaehal Pradesh, whereby it upheld the conviction of Rama Nand accused under Section 302, Penal Code. and that of the co-accused Sbish fl Ram and Kali Datt under Section 201, Penal Code, and also the sentences awarded to each of them by the learned Sessions Judge,

. SUPREME COURT REPORTS

Mandi. The prosecution story, as it emerged from the record, was as follows:

Sumitra deceased, aged 19 yearn, was }he daughter of Som Krishan (P.W. 33). Rama Nand, appellant is her husband and Shish Ram, appellant 2, is her father-in-law while Kali Datt appellant ii 3, is the younger brother of Rama Nand.

Sumitra's father wished to see his daughter highly educated, and employed in Government service and married to suitable, highly educated person, settled in life. Sumitra had passed Higher Second-ary Examination and wanted to pursue her studies further according to the wishes of her father. About two years before Sumitra's reported death, Shish Ram appellant approached Som Krishan (P,W. 33) and persuaded him to give Sumitra in marriage to hi~ son, Rama Nand. While nego-tiating this matrimonial alliance, Shish Rama told Som Krishan that his son was suitably employed on Government job in the Office of the Deputy Commissioner, Kasumpti. He further falsely repre-sented to Som Krishan that his son, Rama Nand was graduate. Believing this representation to be true, Som Krishan about 1 t or 2 years before Sumitra's murder in question, married her to Rama Nand. Before this marriage it was settled by Som Krishan with Shish Ram and Rama Nand accused that even after her marriage, Snmitra would continue to pursue further stu.dies and take up employment as teacher. After the marriage, her father got his daughter, Sumitra, employed as teacher in Village Nursery School at Chanyana which was situated near her parents' village. While teaching at Chnayana, she continued to reside with her parents. She used to visit village Jherwin occasionally to be in the society of her husband who. also used to come to Jherwin from Kasumpti. The accused persis-tently demanded that Sumitra should give up her employment at Chanyana, and start residing permanently and continuously in her matrimonial home at Jherwin. Sumitra tenatiously refused to do so. Rama Nand wrote several letters to Sumitra urging her to give up her adamant attitude. These letters furnished evidence of stron~ motive for Rama Nand to put an end to the life of Sumitra.

Rama Nand was employed as Clerk in the Office of the Deputy Commissioner Kasumpti. On May 12, 1972, he came to Jherwin from Kasumpti. He had earlier written to his wife, Sumitra, strongly urging her to come to village Jherwin. On May 13, 1972, Sumitra came to Rama Nand's house at Jherwin and stayed with him in his room on the night between 13th and 14th May, 1972. The other

rooms of the house were in occupation of the other members of Shish Ram"s family. Thereafter, on May 14, 1972,. she disappeared from the house of the accused. The accused gave. out that Sumitra had gone towards the Sutlej river on the pretext of attending to the call of nature; that thereafter her Salwar and shoes were found on the bank of the river, which indicated that she had jumped into the river and committed suicide. After pretending to make search for her body in the river and nearabout, Shish Ram on May 16, 1972, went to Police Station Karsog at 5.30 p.m. and lodged report (Ex. PAQ). It was recorded by Head Constable Nand Lal. After recording it in the Roznamacha, the Head Cons-table read it in the presence of one Inder Pal to the informant, who, after hearing the same. to be correct, signed it in Hindi and his com-panion lnder Lal signed it in English. As this report, according to the prosecution, shows that an attempt was made by Shish Ram accused to lay false trail and manufacture false clues as to the cause of the death of Sumitra and to screen the offence, it is necessary to reproduce the material parts of that report (rendered into English) , hereunder :...... "my dauglxteI1-i~law Smt. Sumitra Devi aged about 18/19 years, was married about years ago, to my son Rama Nand who is employed in the office of D.C. Kasumpti as clerk. Sumitra Devi herself was employed as Mistress in Nursery School, Chanyana and was residing with her parents. Whenever my son used to come home on leave, she also used to visit her house at such time. Simi-larly my son Rama Nand had come on leave to his house on 12-5-72 and in the evening of 13-5-72, my daughter-in-law, Smt. Sumitra Devi had also come to his house. As usual, because of Sunday holiday, in the morning on 14-5-72, myself, my daughter-in-law and other members of the family were planting chiliy seedlings in the fields near our house. My son (Rama Nand) was lying in bed on account of stomach trouble. After plantation work, at about 9/10 a.m. my daughter-in-law, Smt. Sumitra Devi along with Sheela Devi aged about 7 years, who is daughter of my brother, had gone downward on the pretext of easing herself. After some time, Sheela returned home and reported that she had been turned back from the way by her aunt. Sumitra Devi, who had gone ahead towards the river side. For some time it was believed that she might have gone to answer the call of nature. The. river is about 2 furlongs from my ho\lse towards downside. When sufficient time passed and she did

not return home, then cails were given hither and thither and search was also started but her whereabouts could not be known. After thorough search on the Sutkj river bank, the Sa/war and shoes of Smt. Suntitra were found which Smt. Sumitra was wearing at the time of her going that side. This created suspicion that she might have com.-milted suicide by jumping into the river. She was searched at the river bank as also in the nearby villages ...... but her dead-body was not found, nor any clue of her going is available. Smt. Sumitra was married in good famify and her character was also good, her relations with her husband were cordial. No quarrel on that day or prior to that, took place between her and my son, nor is there any reason for lier disappearance. I have come to report, which may be recorded. After locating her alive or dead, separate report will be lodged."

Daulat Ram, Station Honse Offiror (P.W. 38) then visited the scene of occurrence on May 13, 1972. He was not s:itisfied about t!ic correctness of the information given by Shish Ram', accused. He, therefore, got case under Section 364; Penal Code, registered.

(P.W. 38) then visited the

Shislr Ram accused produced bzforc him the Sa/war (Ex. P'l4) and shoes (Ex. P-15/12) which, according to Shish Ram's report, belonged to Sumitra deceased and were found lying on the river bank. The investigator also prepared rough sketch of the. spot where these clothes and shoes were stated to have been found.

l' Som Krishan upon receiving the information, suspected that her daughter had been murdered at the iustance of Rama Nand and others. Som Krishan reached the spot and made enquiries. Rama Nand and Shish Ram accused were arrested by the Investigating Officer on June 5, 1972. The Investigating Officer took into posses-sion the Locket-chain (Ex. P-1) and the watch (Ex. P-2) belonging to the deceased from the room which was in the occupation of Rama Nand, in the presence of Kanshi Ram and Hira Mani and prepared the Memo (Ex. P-A) in this behalf. Rama Nand accused, whilst in polic-.: custody, produced Sumitra's clothes (Ex. P-5 to Ex. P-10) which were taken into possession by the Investigator in the presence of Mastu and Hari Ram, witnesses (vide Ex. P-Y). These clothes, 11 according to the prosecution, were the same which Sumitra was wear-ing when sl1e arrived at the house of Rama Nand accused on May 13, 1972.

On June 5, 1972, legless and armless dead-body in highly tkcomposed state was found at distance of four kilometres down-slrcam on the bank of the river Sutlej near village Randaul. Kali Datt appellant was found near tlrat skeleton in the early hours or June S, 1972. He dragged the skeleton from the river upto some distance. It appeared that Jogs clc. had eaten away the flesh. p.1rl of the skull was found in tact, while the remaining part of it was lying at some distance. On receiving information, Som Krishan (P.W. 33) and bis brother's wife, Laxmi (P.W. 2), came and identi-fied the skeleton to be' that of Sumitra. There was some flesh on the buttock portion and there was mark on it. According to these identifying witnesses, this mark was that of burn which Sumitra bad received during her infancy. One of the teeth found in the mandible was carious, while another tooth was jutting out. Daulat Ram got the dead-body measured from shoulder to the cut portion of the thics by Mchar Chand. The measurement came to 2'-4". Daulat Ram prepared the inquest report (Ex. P /F) which was attested by Kundan wilncss. He sent the dead-body a.long with the inquest report (Ex. PF) to Simla for post-mortem examination. The dead-hody reached the Hospital at 1 p.m. on June 7, 1972. There, they directed the police to take the dead-body lo Ripon Hospital. Conse-quently, at 2 p.m., the dead-body was made over to the Duty Doctor at the Ripon Hospital. The post-mortem examination was conduct.ed by Dr. J. R. Sharma (P.W. 14) on the following day. The post mortem report was handed over to the police by the Doctor on June 21, 1972. few components of the skeleton, including the mandible, were sent to the Dental Surgeon, Dr. R. S. Patbania (P.W. 15) and Radiologist, Dr. M. L. Ahuja (P.W. 16) for examination and opinion. These Doctors, however, opined that the mandible belonged to child of not more than 10 years of age. The components of the _ skeleton were, also, sent to Dr. 0. P. Bhargava (P.W. 31), Professor of Anatomy in the Medical College of Simila. His opinion about the age of the deceased was also the same. The Doctors could not deter-mine the sex of the skeleton.

On August 24, 1972, Paranda (cotton headtail), alleged to be of Sumitra deceased was recovered from the jungle of Ghangar. Some human hair were found entangled in the Paranda. These hair were sent for comparison with the hair of the deceased found embed-d•:d in her Dupal/a. The forensic expert opined that the two sets of hair belonged to one and the same person.

After investigation, the four accused, namely, Rama Nand, .his father Shish Ram, his brother Kali Datt and Shish Ram's brother Kesar Chand, were sent up befor·~ Magistrate who committed them

--------

for trial to the Court of Session. At the trial, j)1 his examination un-der Section 342, Rama Nand admitted that after her marriage, Sumitra got employment as teacher. He, however, denied the prosecution allegation that he and his father were opposed to her employment as teacher. He expressed ignorance as to whether there was any settle-ment between his father, Shish Ram, and Som Krishan Shastri, father of Sumitra that she would continue her studies even after the marriage and would be free to take up service as her career. He added that his matrimonial alliance with Sumitra was not negotiated alld settled in his presence. He admitted that the letters dated December 13, 1971, December 16, 1971 and May 9, 1972 (the English rendering of which is marked Ex. PAH, Ex. P AB, and Ex. PC, respectively) were written by him to Sumitra, and that the letter (Ex. PAJ) dated October 14, 1971, was written by him to his father-in-law. Som Krishan Shastri (P.W. 33). He further admitted that on May 13, 1972, Sumitra came to his house In village Jherwin from her parents' place, and that she was then wearing the golden chain (Ex. P-1), wrist watch (Ex. P-2), Dupatta (Ex. P-5), suit (Ex. P-6 and Ex. P-7), socks (Ex.P-8 and 9), banian (Ex.P-10) and was carrying the basket (Ex. P-11) and umbrella (Ex. P-12). He, however, added that when she (Sumitra) reached home on May 13, 1972 with the arti-cles mentioned above, she was wearing pink ribbon on her head and not any threadbunch like Ex.P-4. Question No. 9 put to him was: "It is in prosecution evidence that on May 14, 1972 Sumitra was not seen at your house or in the village at Jherwin at all or thereafter. What have you to say?" He replied: "On 14-5-72 morning at about, say upto 11 a.m., she was working in the field at Jherwin and thereafter she was not seen there and later on I was arrested and so I cannot say about her whereabouts." He admitted that his father Shish Ram had lodged the report (Ex. PAQ) in the Police Station, Karsog. When the circumstance appearing in the prosecution evidence, "that after the occurrence on May 16, 1972, he (Rama Nand) went away to Simla from Jherwin and returned home three or four days thereafter" was put to Ramanand, he replied: "It is wrong. I went to Simla on 17-5-72 evening and returned on 19th morning". He denied that he and his father implored Som Krishan Shastri that he should save them from the police at Jherwin. When .the negative circumstance appearing in evidence, to the effect that the Sa/war (Ex. P-14) was not of Sumitra, was put to him, he asserted that the Salwar (Ex. P-14) was that of Sumitra; and that bis father had shown the Salwar (Ex. P-14) indicating that bis daughter-in-Jaw, Sumitra had gone in the river when the (Rama'nand) was weeping. In reply to the last question, Rama N and narrated more or less the same story which was given by them (accused) to

Among other things, he stated : "It

the police in the Report, PA Q. Among other things, he stated : "It was found on the river side that her Salwar (Ex. P-14) and shoes (Ex. P-15) were lying by the river bank giving indication that she had jumped into the river. Then we were in mourning and the villagers also verified that Sumitra was seen going to the river".

Shish Ram accused admitted that Sumitra had come to their house at Jherwin on May 13, 1972 and had disappeared on May 14, 1972. He admitted having lodged the report (Ex. PAQ) in th" Police Station, Karsog. He admitted that he had produced the Salwar (Ex.P-14) and shoes (Ex. P-15) before the police during investigation. He also maintained that the Salwar (Ex. P-14) belonged to Sumitra. He de-nied that he and his co-accused were threatening to teach Sumitra and her father the lesson of life for keeping Smnitra employed against their wishes at Chanayana. He_ repeated the substance of the story which he had earlier stated in the report (Ex. PAQ), and reiterated that since Sumitra's Salwar and shoes were found on the river bank, she had either jumped into the river or run away somewhere.

The learned Additional Sessions Judge by his judgment, dated December 1, 1973, convicted Rama Nand under Section 302, Penal Code, and sentenced him to rigorous imprisonment for life. He fur-ther convicted Kali Datt and Shish Ram accused under Section 201, Penal Code, and sentenced each of them to one year's rigorous impri-sonment and fiue of Rs, 500/-. Keshar Chand accused was given the benefit of doubt and acquitted. The appeal by the convicted per-sons was dismissed by the High Court as per its judgment, dated June 7, 1974. Hence this appeal by special leave. The conviction of the appellants is based entirely on circumstantial evidence.

In convicting Rama Nand, appellant under Section 302, Penal :i"' ~ Code, for the murder of his wife, Sumitra, the courts below have con-, currently relied upon these circumstances which, according to them, had been established by the prosecution.

Penal

(1) Rama Nand accused had strong moth'l: to murder his wife, • Sumitra.

(2) Sumitra was last seen alive with Rama Nand, appellant in the family house at Jherwin on the night between 13th and 14th May, 1972. The other two co-accused were also present in the same house.

(3) (a) Rama Nand .and the other co-accused falsely gave out that she bad committed suicide by jumping into the river. They 'planted' Salwar and pair of shoes on the 'bank of the Sutlej and gave out that they belonged to the deceased, artd Shish Ram lodged

[198!] 2 S.C.R.

false report with the police to the effect that she had committed suicide by jumping into the river. The Salwar and the shoes, which had been 'planted' there to manufacture false clues by the accused, did not belong to Sumitra, and the accused have falsely asserted that these articles belong to the deceased.

( b) The story given out by the accused persons that upto 11 a.m. on May 14, 1972, Sumitra was planting chillies along with Sheela and other members of the family of the accused, was false.

(4) The gold chain (Ex. P-1) and the watch (Ex. P-2) which Sumitra used to wear on her person all the 24 hours, and the clothes (Ex. P-5 to P-10) which she had on her person and the basket (Ex. P-11) and umbrella (Ex. P-12) which she was carrying when on the evening of May 13, 1972 she came to the house of the accused at Jherwin,. were recovered from the house of the accused.

(5) Some days after the occurrence, one Paranda was found from the jungle near this village. There was bunch of hair in the plaited tail of this Paranda. The tail appeared to have been cut. These hair sticking in the Paranda and those found entangled in _the Dupatta of the dceascd were according to the Forensic Expert of one and the same person.

( 6) legless decomposed corpse . was recovered from the Sutlej near village Randol in mutilated condition. From burnt mark on the flesh stickinf,l to the buttock of the corpse it was identified as that of Sumitra, deceased.

TI1e High Oiurt further held that even if any doubt remained with regard to the identity or recovery of the corpus delicti, the telling circumstances otherwise complete the chain of evidence to establish beyond doubt that Sumitra had been murdered and the charges had been established against the accused as held by the trial court. In the · - ~ result it dismissed the appeal of the accused respondents.

Shri Hardayal Hardy, learned counsel appearing for the appellants contents that these circumstances have not been satisfactorily established. He has placed great emphasis on the evidence of the medical experts, according to which the mutilated corpse found at Randol was that of child, aged about 8 or 9 years. It is submitted that the dead-body found was not that of Sumitra deceased. and as result, the courts below were not justified in holding that the death of Su.mitra had been established by the prosecution.

On the other band, the learned counsel for the State has argued in support of the judgment of the High Court.

It ig well seUJed that where the inference of guilt of an accuse« person is to be drawn from circumstantial evidence only, those circum-• ~tances must, in the first place, be cogently established. Further, those circumstances should ·be of definite tendency pointing towards the guilt of the accused, and in their totality, must unerringly lead to the conclusion that within all human probability, the offence was com-mitted by the accused and none else.

The first circumstance which has been found to be established by the courts below against the appellant is that he had "a very strong motive" to commit the murder of Sumitra. To substantiate this fact, ~--rhe prosecution produced four letters written by Rama Nand appellant. There arc: Ex. PAJ, Ex. PAH. Ex. PAB/1 and Ex. PC. The accused also tendered in evidence the letter (Ex. DA) dated November 14, 1971 written by Som Krishan to Sumitra.

As already mentioned, Rama Nand accused has admiltcd that the letters (Ex. PAJ, PAR, PAB/l and P.C.) were written by him. Ex. P AJ purports to have been written by him from village Jherwin on October 14, 1971. In this Jetter, Rama Nand very clearly informed his father-in-law that his father Shish Ram was not in favour of Sumitra taldng up service and residing away from the accused's house at Jherwin. In this Jetter, Rama Nand urged his father-in-law that the latter should either come !o Jherwin along with Sumitra or send her :ilone. This letter also indicates that Sumitra was persisting in takbg up &ervice elsewhere against the wishes of the accused persons.Chronologically, the next letter is Ex. DA dated November 14, 1971. It is addressed by Som Krishan to his daughter, Sumitra. Tn this Jetter, the father informs the daughh:r that he had obtained her appointment Jctter and she would be required to join by the 17th to start the Nursing School at Balwari. He wanted her to come to his (house to take up the appointment. In this letter, he also wishes her daughter to convey to Rama Nand appellant and his brother, Kesar ·Chand (acquitted accused) that tl1ey should agree to Sumitra's taking up this employment and that they should further bring round Shish Ram by reminding him that they liad earlier consented to her taking 11[p Service. This letter further indicates that Sumitra ][was ][much dis-]tressed because of the hostile attitude adopted by her in-laws towards her. To console her, the father wrote : "Don't worry. What-ever God does is good. Have self-confidence and do not repent on any failure".

8. The third Jetter, datoo December 13, 1971, (Ex. PAH), written .by Rama Naud to Sumitra, shows tl1at the opposition of the appellant, 13-57 SCI/81

his father Shish Ram and brothers to Sumitra's taking up service away from the matrimonial home, had passed from the serious to the sardonic stage. It starts with the words : "Wish you happy luxury!" Read in accord with the tenor of the letter, it conveys biting ironi-cal taunt. These words were capable of being construed as conveying an innuendo that she was merry-making de-hors the matrimonial home in an extra-marital way. May be, the appellant was doubting her fidelity. He informs her that he had visited Jherwin in the hope toot be would join her there, but this hope did not materialise. He com-plains against this attitude of neglect on the part of his wife when he says : "Today you have not seen to my condition, and have defamed me. To whom should I blame? It is the wind and to whicl!~ side it blows it must do something. I was thinking to save (you) from this wind." He further reproaches a\1d upbraids her : "You did not think owr it seriously and you did not care for it nor others. You have taken it as prestige issue. I cannot do anything so long I am not heartily happy and I weep to my fate." He then warns her in contemptuous and peremptory tone : "It would be better that you should resign your job now and come down here ... If you intend to reside with me, then you should agree to my words .... otherwise it will be dog's life. You should either come to this place or to village Jherwin after resigning the job and from there you may come to Simla on any day. As you know, friend in need is friend in-deed. When this is lost, one cannot take the shelter of others." He reminds her that her marriage had been solemnised with him. "To do serJice entirely depends upon you and me and not upon (your) father ... It is tin1e to resign the Service ... " He repeats : "It is against the respect of my family, yourself and myself that I should allow you to serve at monthly pay of Rs. 120/- and only for tenure of six months and myself to stay at Simla in the Hotel." He then in stronger language demanded her to resign her job within 24 hours and coine to his house direct wit?out waiti~g for her resi~ation to be ~ccepted.:"\ He closes the letter with an ommous threat veiled as warmng : "If · you do not resign the job, onr relations will become strained."

In the next letter (Ex. PC), dated December 16, 1971, Rama Nand wrote to Sumitra that he did not understand why she did not 'improve his (?) life' and why she was acting at the beck and call of others. He urged her that it would be better to 'live for more'. He added : "You obey me or not, you yourself will understand the significance of this when you give place to it in your mind". He sternly repeated the warning : "I once again request you to keep in mind your as also my honour, what you have to do, as the time has come. There is no example in the history of world that. girl after marriage

should act on the advice of her father, which may be harmful." He again urged her : "Do not think this letter as a, mere piece of paper, but each and every line in it will decide our future career ...... you should resign your post." He again administered warning, coupled w.i!h threat of resorting to violence in case she did not resign her job to live· with the accused permanently : "The present is the condi-tion of China's wall as Lt. General Mr. Kaul was saying that on China Border there is no firing, no firing, no firing. But what was the result in the end, you know betler . . . . . . . . . If you honour me, 'your husband, then you should tender your resignation from the job ferthwith". He further sternly warned her : "If you still do not come round, what would happen in future, will entirely be your responsi-bility and I may not be blamed for that". He ended the Jetter with hostile note, repeating the threat : "I may write, what will happen in future, Entire responsibility of future solely depends upon you. It is the question of life and not of service . . . . . . This is time of your test. Reply this letter." The sentence, 'It is the question of life and not of service' read in the context, clearly conveys to !he wife threat that the choice open to her was between 'life' and 'service', that is to say, she would not be left alive if she did not give up the 'service'. This letter unmistakably reveals that Rama Nand had worked his feelings at his wife's persistent refusal to give up service and live with him, into such frenzied resolve that if his wife did not, as he desired, 'mend' her ways, he would 'end' her life.

saying that on honour me, do not come your responsi-c

Even after this Jetter, there appears to have been no alleviation or change in this revengeful attitude of the husband towards his wife. This is discernible from Rama Nand's last letter dated May 9, 1972 (Ex, PAB) addressed to Sumitra. In this letter also, he cannot conceal his feeling of being "sick of you". He writes, ". . . . . . the difference in views can make life troubleful or as well can '1ead towards downfall as I already told you'', that "to deceive any true person can ;*- only be sin and nothing else". He appears to be giving her last warning, last chance to come round and come home when he writes that "time is short I will again request you that if you try to come home on Saturday, it will be good .... I do not feel good. . . . you definitely try to come, if you cannot come on Saturday then come on Sunday, otherwise .... "

, , ' These letters vividly reveal that despite the repeated persuasions, Warnings and threats proceeding from Rama Nand ~ccused, Sumitra intransigently and persistently refused to give up hi:r service , at G!anyana, and reside_nce with her parents, _and declined .to come and live permanently iu .the matrimonial home at Jherwin:, and a& result, how the husband's.feelings of tender11es.s towards his wife progressively .~· .

changing into regret, persecution complex, resentment, exaspe-ration and smouldering hostility, ultimately hardened into revenge-ful resolve in the mind of Rama Nand lo end what Ire calls "a dog's life" by putting an end to the life of his spouse, We agree with tJae High O>urt that these letters reveal that Rama Nand appellant had strong motive to murder the deceased.

The second circumstauce was also well established. lt had been admitted even by the appellant and his co-accused. The courts below have found, aud rightly so, that both the limbs of circumstance No. (3) had also been established by evidence produced by 1he prosecution. Som Krishan (P.W. 33), father of Surnitra, had testified ~ that when he went to Jhcrwin on receiving message from the accused about the disappearauce of his daughter, he was shown the Salwar (Ex. P-14) and shoes (Ex. P-15/1-2) and told that these clothes were left behind on the bank of lhe Sutlej river when she disappeared. P.W. 33 further stated that this shabby Salwar (Ex. P-14) which had patches on it, did not belong to Snmitra and she never wore such Salwar; nor did the pair of shoes (Ex. P-15) belong to lrer. P.W. 33 further testified : "Then Rama N and, Shish Ram and Kesar Chand accused implored me that they may be saved from police remand. To this I said that I was not conversant with law but you may tell the truth". This testimony of P.W. 33 has been accepted by lhc courts below. We have no reason to take different view.

. As rightly held by tire courts below Sumitra was sophisticated and educated girl. It was difficult lo believe that she would do chi.Ry plantation and wear such patched and dirty Salwar as Ex. P-14. The very story given out by the accused persons and narrated ~ ii:' Shish Ram in the report (Ex. PAQ) made by him to the Police, and repeated by him and Rama Nand in their examination under Section 342, Cr. P.C., to effect-that Sumitra had after undressing aad leaving behind her shoes (Ex. P-15) and Salwar (Ex. P-14) on t&e bank of the Sutlej, committed suicide by jumping into the river-was improbable, incredible and false. Thus, circumstance 3(a) and (b) had also been clearly aud cogently established. This piece of evidence was relevant under Section 8, Evidence Act and was definite pointer ·towards the guilt of the accused. Circumstauce ( 4) appearing in the prosecution evidence, was admitted by the accused persons. Circnm-·stauce (5) also stood established. Though feeble pointer towards the guilt of the accused, by itself it was not of conclusive character. n Circumstance ( 6) has been seriously controverted. The burden of the arguments of the learned counsel for the appellauts is that the prose-cution had miserably failed to establish that the legless decomposed

aad ·· ""':

RAMA NAND v. H.P. (Sarkaria, /.)

body found in the river was that of Smt. Sumitra, and in such situation, the possibility of her being alive cannot be reasonably ruled out.

Although the High Court has held that the body recovered was that of Sumitra deceased and that the bones sent to the medicdl experts were not parts of the decomposed body found, but appeared to have been fraudulently replaced with the bones of child during transmission to the medical experts, we would assume that the identity of the body found in the river was not established beyond reasonable doubt. In other words, we would take it that the corpus delicti, i.e., the dead-body of the victim was not found in this case. But even on that assumption, the question remains whether the other circumstances established on record wer9 sufficient to lead to the conclusion that Within all human probability, she had been murdered by Rama Nand appellant? It is true that one of the essential ingredients of the offence of culpable homicide required to be proved by the prosecution is that the accused "caused the death" of the person alleged to have been killed.This means that before seeking to prove that the accused is the perpetrator of the murder, it must be established that homicidal death has been caused. Ordinarily, the recovery of the dead-body of the victim or vital part of it, bearing marks of violence, is sufficient proof of homicidal death of the victim. There was time when under the old English Law,. the finding of the body of the deceased was held to be essential before person was convicted of committing his cul-pable homicide. "I would never convict", said Sir Mathew Hale, "a per.;on of murder or manslaughter unless the fact were proved to be done, or at least th" body was found dead". This was merely rule of ~caution, and not of law. But in those times when execution was the only punishment for murder, !he need for adhering to this cautionary rule was greater, Discovery of the dead-body of the victim bearing ~ysical evidence of violence, has neve~ been considered as the only mode of proving the corpus delicti in murder. Indeed. very many cases are of such nature where the discovery of the dead-body is impo5siblc. blind adherence to this old "body" doctrine would open the door wide open for many heinous murderer to escape with impunity simply becal!Se they w&e cunning and clever enough to destroy the body of their victim. In the context of our law, Hale's enunciation has to be interpreted no more than emphasising that where the dead-body of the victim in murder case is not found, other cogent and satisfactory proof of homicidal death of the victim must bo adduced by the prosecution. Such proof may be by the direct ocular

al:colint of an eye-witness, or by circumsl!Jntial evidence, or by bot.h. But where the fact of corpus delicti, i.e. ·~micidal death' is sought: to be established by circumstantial evidence alone, the circumstances must be of clinching and definitive character unerringly leading to the· inference that the victim concerned has met homicidal . death. E;ye)i so, this principle of caution cannot be pushed too far ~s requir-ing absolute proof .. Perfect proof is seldom to be had in this imperfect world, and absolute certainty is myth. That is why under Section :>,Evidence Act, l>·fact is said to be "proved", if the Court consider-ing the matters before it, considers its existence so probable that -.4; prudent man ought, ·under the ·circumstances of the particular. case, to. act µpan the supposition that it exists. The corpus delicti or the fact of homicidal death, therefore, can be proved by telling and incul-pating circumstances which definitely lead to the conclusion · that within all human probability, the victim has been murdered by tJie accused concerned .. In the instant case, Circumstances (I) to . (5), in their cumulative effect, are not only inconsistent with the innocenc.e of Rama Nand appellant, but ineluctably and rationally compel th~ conclusion that Sumitra has died and it is Rama Nand appellant who has intentionally caused her death. Circumstance (3) involves an admission by Rama Nand and Shlsh Ram accused that Sumitra has inet an unnatural death. The only difference between the prosecution version and the defence version is as to whether Sumitra committed suicide or had been killed by Rania Nand appellant. It has been found that the story of the suicide set up by the accused is fal>c. The ar\icl~~ Salwar (Ex. P.14) and the shoes (Ex. P-15) do not belong to he., They were planted by the accused to lay false trail and to mis-direct the investigation. This circumstance taken in conjunction with the others, irresistibly and rationally leads to the conclusion that she liru; b,een murdered by Rama Nand appellant and her dead body has been - ""' disposed of by the appellants Shish Ram and Kali Datt

For the foregoing reasons, we dismiss this appeal and maintain ihe convictions and sentences of the appellants.

Appeal d~<misseef.

SJl.